Recording that Workplace Zoom Call? Make Sure Everyone Knows It.

California Secretary of State Alex Padilla appeared to tear up when Gov. Gavin Newsom (D) asked him to fill the U.S. Senate seat being vacated by Vice President-elect Kamala Harris.

The moment was captured in a video recording and tweeted out to the governor’s 1.9 million followers, receiving more than 1.8 million views and 37,700 “likes.” Padilla told the New York Times the next day that he didn’t realize the conversation was being recorded.

“Yes — that excerpt was recorded unbeknownst to me,” the senator-designee told the newspaper. “I was overwhelmed with emotion.”

A spokesman for Padilla said the comment was in jest, to poke fun at the tearful response. “So he knew that it could potentially be made public but was totally caught up in the moment and made a joke about it,” David Beltran said.

Still, joke or not, the reference to a surprise recording raises a legal gray area, of whether Zoom meetings and teleconferences fall under wiretapping laws that specify who has to consent to having conversations recorded. California state law requires that both parties consent to recording of confidential communications.

Companies should have a clearly communicated set of guidelines, according to Brian Lam, a privacy attorney at Mintz.

“Make sure you’ve thought through these issues beforehand,” Lam said. “Think about them holistically as part of your privacy and data protection function. It’s not just whether you can record the information.”

Location Matters

Twelve states require all parties to consent to recording of a conversation, according to a synopsis of laws compiled by the Reporters Committee for Freedom of the Press. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

But the individual laws and carve-outs in those laws can vary from state to state, according to attorney Lydia de la Torre of Squire Patton Boggs. “Every statute is drafted differently,” she said.

California’s law, for example, only forbids the recording of “confidential communication” where any of the parties “reasonably” expects the information discussed will stay between them. Massachusetts’ law, on the other hand, calls out “any wire or oral communication.”

That means there may not be an expectation of privacy when an employee calls another employee using a company’s internal telephone system under California law, de la Torre said.

The best thing an employer can do is follow the most stringent law in the states they do business, according to Lam. That can be especially important when many people are working remotely and it’s uncertain in which state an employee may be located.

Strategies to Ensure Compliance

An easy-to-understand, comprehensive plan on recording meetings is the best strategy to ensure legal compliance with state privacy laws, according to de la Torre.

“It’s more efficient to create a policy and train employees to lean on the side of caution” when hitting the record button, the attorney said.

The plan should include policies for how to announce that a meeting will be recorded and can make use of existing audible cues that are built into teleconference software. Zoom, for example, has a built-in functionality that can be activated to require all participants to consent to recording before joining a meeting. Those types of notification should be automatic when hitting “record.”

The best policy may be to ask employees not to record calls with others unless they have a good reason for it, Lam said. Even if proper consent is given, maintaining a recording of confidential information opens a company up to increasing risk. Employers then have to think about how to properly maintain sensitive information in accordance with other laws like the California Consumer Privacy Act (CCPA).

Ultimately, the smartest practice is to treat every conversation as confidential and set a high bar of justification before hitting that record button, Lam said.